Erb v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D2024-2674 _____________________________

AIMEE VICTORIA ERB,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the County Court for Escambia County. Barry E. Dickson, Jr., Judge.

August 6, 2025

PER CURIAM.

Following a bench trial, Aimee Erb appeals her conviction for criminal mischief with damage to property under $200. See § 806.13(1)(b)1., Fla. Stat. (2023). The offense charged was a second-degree misdemeanor. Id. Defendants charged with any category of criminal mischief have a right to a jury trial under the Florida and United States Constitutions. Reed v. State, 470 So. 2d 1382, 1384 (Fla. 1985).

The State concedes this error, and we accept the concession. Because there was no oral or written waiver by Erb of her right to a jury, we must reverse the conviction and remand the case for a new trial. See Sansom v. State, 642 So. 2d 631, 632 (Fla. 1st DCA 1994) (citations omitted) (“[A] defendant's silence in court does not

constitute a valid waiver of the right to a jury trial, even where such silence follows defense counsel's oral waiver on behalf of the defendant.”); see also Johnson v. State, 994 So. 2d 960, 963 (Fla. 2008); Fla. R. Crim. P. 3.260; cf. Saini v. State, 50 Fla. L. Weekly D1264, 2025 WL 1646535 (Fla. 1st DCA Jun. 11, 2025) (holding that oral waiver of jury trial by defendant following inquiry on the record with defense counsel was a valid waiver).

REVERSED and REMANDED. BILBREY, KELSEY, and NORDBY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jessica J. Yeary, Public Defender, and Jasmine Dixon, Assistant Public Defender, Tallahassee, for Appellant.

James Uthmeier, Attorney General, and Zachary F. Lawton, Assistant Attorney General, Tallahassee, for Appellee.